Sri Halimpure Sharanappa Premsagar , Bidar V. The Income Tax Officer Ward-1 , Bidar

ITA 3070/BANG/2018

• Counselvise Citation: [2020] 129 COUNSELVISE.COM (IT) 9868 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 15-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEP
• Assessee Lawyers: V SRINIVASAN
• Section: 69A; 48; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-B BENCH : BANGALORE BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ITA NO. 3070/BANG/2018 ASSESSMENT YEAR: 2014-15 SRI HALIMPURE SHARANAPPA PREMSAGAR, H.NO. 9/9/465, AMBEDKAR COLONY, BIDAR 585 401. PAN: AONPP 2745N VS. THE INCOME TAX OFFICER, WARD - 1, BIDAR. APPELLANT RESPONDENT APPELLANT BY : SHRI V. SRINIVASAN, ADVOCATE RESPONDENT BY : SHRI.GANESH R GHALE, ADVOCATE & STANDING COUNSEL F OR DEPT. DATE OF HEARING : 09 .0 9 .2020 DATE OF PRONOUNCEMENT : 11.09.2020 O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER DATED 29.093.2018 OF THE CIT(APPEALS), GULBARGA RELATING TO ASSESSMENT YEAR 2014-15. 2. THERE IS A DELAY OF 158 DAYS IN FILING THIS APP EAL BEFORE THE TRIBUNAL. THE ASSESSEE HAS FILED CONDONATION PETITION ACCOMPA NIED BY AN AFFIDAVIT STATING THAT THE ORDER OF CIT(A) WAS COMMUNICATED T O THE ASSESSEES EARLIER COUNSEL WHO APPEARED BEFORE THE CIT(A). THOUGH HE RECEIVED THE CIT(A)S ORDER, BUT HE HAS NOT GUIDE THE ASSESSEE P ROPERLY ON THE NEXT COURSE OF ACTION. FURTHER, THE ASSESSEE WAS SUFFER ING FROM ILL-HEALTH ITA NO. 3070/BANG/2018 PAGE 2 OF 5 CAUSED BY HYPER-TENSION, DIABETES & BACKPAIN AND WA S ADVISED REST. MORE SO, THE ASSESSEE IS HAVING PHYSICAL DISABILITY AND ALSO RESIDING FAR FROM BANGALORE AT BIDAR. LATER, THE ASSESSEE APPR OACHED THE PRESENT COUNSEL, MR. V. SRINIVASAN, AND IMMEDIATELY THEREAF TER WITHIN REASONABLE TIME THE PRESENT COUNSEL FILED THE APPEAL AND THUS THERE WAS A DELAY OF 158 DAYS IN FLING THE APPEAL. THESE ARE THE CIRCUMSTAN CES FOR THE DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL AND THE LD. COUNSEL FOR THE ASSESSEE PRAYED TO CONDONE THE DELAY AND ADMIT THE APPEAL, OTHERWIS E IT WOULD CAUSE UNBEARABLE LOSS TO THE ASSESSEE. 3. THE LD. DR STRONGLY OPPOSED TO CONDONATION OF DE LAY IN FILING THE APPEAL BEFORE THE TRIBUNAL. 4. I HAVE HEARD THE PARTIES AND PERUSED THE RECORD. ADMITTEDLY, THE ASSESSEE IS SUFFERING FROM PHYSICAL DISABILITY CERT IFIED BY THE DIRECTORATE FOR EMPOWERMENT OF DIFFERENTLY ABLED & SENIOR CITIZENS, BANGALORE. THE ASSESSEE IN THE AFFIDAVIT HAS STATED THAT HE HAS HA NDED OVER THE PAPERS TO EARLIER COUNSEL WHO APPEARED BEFORE THE CIT(APPEALS ), WHO FAILED TO TAKE PROPER ACTION TO FILE NECESSARY APPEAL BEFORE THE T RIBUNAL. LATER, HE APPROACHED THE PRESENT COUNSEL, MR. V. SRINIVASAN, WHO HAS FILED THE APPEAL WITHIN 48 HOURS BEFORE THIS TRIBUNAL. IN MY OPINION, THERE EXISTS SUFFICIENT REASON IN FILING THE APPEAL BELATEDLY BE FORE THIS TRIBUNAL. RELYING ON THE HONBLE SUPREME COURT JUDGMENT IN THE CASE O F COLLECTOR, LAND ACQUISITION V. MST. KATIJI & ORS., 167 ITR 471 (SC) , I AM INCLINED TO CONDONE THE DELAY AND ADMIT THE APPEAL FOR ADJUDICA TION. 5. AT THE TIME OF HEARING, GROUNDS NO.2 TO 4 WERE N OT PRESSED. 6. THE GROUNDS FOR CONSIDERATION IS WITH REGARD TO ADDITION OF RS.12,91,700 SUSTAINED U/S. 69A OF THE INCOME-TAX A CT, 1961 [THE ACT] BY THE LD. CIT(APPEALS) AS AGAINST UNDER THE PROVISION S OF SECTION 68 MADE BY ITA NO. 3070/BANG/2018 PAGE 3 OF 5 THE AO. IN THIS CASE, THE ASSESSEE HAS DEPOSITED RS.12,91,700 INTO 3 BANK ACCOUNTS HELD BY HIM AND HE HAS NOT OFFERED SA TISFACTORY EXPLANATION BEFORE THE AO AND THE SAME WAS ADDED U/S. 68 OF THE ACT. 7. BEFORE THE CIT(APPEALS), THE ASSESSEES EXPLANAT ION WAS THAT DEPOSITS INTO BANK ACCOUNTS CANNOT BE CONSIDERED U/ S. 68 OF THE ACT SINCE BANK ACCOUNTS ARE NOT BOOKS OF ACCOUNT MAINTAINED B Y THE ASSESSEE. THE CIT(APPEALS) AGREED WITH THE CONTENTION OF THE ASSE SSEE AND DELETED THE ADDITION MADE U/S. 68 OF THE ACT, HOWEVER, HE SUST AINED THE ADDITION U/S. 69A OF THE ACT. 8. NOW THE CONTENTION OF THE LD. AR FOR THE ASSESSE E BEFORE ME IS THAT THE DEPOSITS WERE MADE INTO BANK ACCOUNTS OF ASSESS EE FROM EARLIER WITHDRAWALS AND THE SOURCES WERE EXPLAINED AND ADDI TION U/S. 69A OF THE ACT CANNOT BE MADE, WITHOUT GIVING MANDATORY NOTICE U/S. 251(2) OF THE ACT WHICH AMOUNTS TO ENHANCEMENT OF ASSESSMENT. HE REL IED ON THE DECISION OF THIS BENCH OF THE TRIBUNAL IN THE CASE OF SRI GIRISH V. YALAKKISHETTAR V. ITO, ITA NOS.354 & 355/BANG/2019, ORDER DATED 27.01 .2020. 9. ON THE OTHER HAND, THE LD. DR SUBMITTED THAT ORI GINAL ADDITION WAS MADE BY THE AO U/S. 68 OF THE ACT. LATER ON APPEAL , THE CIT(APPEALS) DELETED THE ADDITION U/S. 68 OF THE ACT, HOWEVER, I T WAS SUSTAINED U/S. 69A OF THE ACT. ACCORDING TO THE LD. DR, THERE WAS NO ENHANCEMENT OF INCOME, AS SUCH THERE WAS NO QUESTION OF ANY NOTICE U/S. 25 1(2) OF THE ACT. HAD IT BEEN ANY ENHANCEMENT, THE CIT(APPEALS) WOULD HAVE G IVEN THE ENHANCEMENT NOTICE. ACCORDING TO THE LD. DR, THE C IT(APPEALS) HAD NOT DISCOVERED ANYTHING NEW, EXCEPT THAT HE AGREED WITH THE CONTENTION OF ASSESSEE THAT ADDITION COULD NOT BE MADE U/S. 68 OF THE ACT AND HE MADE THE ADDITION U/S. 69A OF THE ACT, AFTER DELETING TH E ADDITION MADE BY THE AO U/S. 68 OF THE ACT. THUS THERE WAS NO ENHANCEMENT AND ADDITION WAS RESTRICTED TO THE SOURCE OF INCOME ALREADY DISCOVER ED BY THE AO. ON SUCH ITA NO. 3070/BANG/2018 PAGE 4 OF 5 ACTION OF THE CITA, THERE IS NO RESTRICTION IMPOSED BY SECTION 251(2) OF THE ACT. FOR THIS PURPOSE, HE RELIED ON THE JUDGMENT O F THE CHANDIGARH BENCH OF THE TRIBUNAL IN ITA NO.161/CHD/2012 DATED 10.09. 2014 IN THE CASE OF ANUP SHARMA . HE ALSO FURTHER RELIED ON THE ORDER OF BANGALOR E BENCH OF THE TRIBUNAL IN THE CASE OF P.V. AJAY NARAYAN V. ITO DATED 31.03.1996 AND SUBMITTED THAT MISQUOTING OF THE SECTION IS NOT FAT AL AND ADDITION CAN BE UPHELD UNDER ANOTHER SECTION OF THE ACT. 10. NOW THE QUESTION BEFORE ME IS WHETHER THE CIT(A PPEALS) WAS JUSTIFIED IN SUSTAINING ADDITION U/S. 69A AFTER DEL ETING IT U/S. 68 OF THE ACT. THIS ISSUE WAS CONSIDERED BY THIS TRIBUNAL IN THE C ASE OF SRI GIRISH V. YALAKKISHETTAR (SUPRA) AND RELIED ON THE JUDGMENT OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF SMT. SARIKA JAIN V. CIT, 407 ITR 254 (ALL) , WHEREIN IT WAS HELD THAT USE OF THE WORD THEREON IS IMPORTANT AND IT REFLECTS THAT THE TRIBUNAL HAS TO CONFINE ITSELF TO THE QUESTIONS WHICH ARISE OR ARE SUBJECT MATTER IN THE APPEAL AND IT CANNOT BE T RAVELLED BEYOND THAT. THE POWER TO PASS SUCH ORDER AS THE TRIBUNAL THINKS FIT CAN BE EXERCISED ONLY IN RELATION TO THE MATTER THAT ARISES IN THE APPEAL AN D IT IS NOT OPEN TO THE TRIBUNAL TO ADJUDICATE ANY OTHER QUESTION OR AN ISS UE, WHICH IS NOT IN DISPUTE AND WHICH IS NOT THE SUBJECT MATTER OF THE DISPUTE IN APPEAL. ACCORDINGLY, WHEN THE AMOUNTS COULD NOT HAVE BEEN A DDED UNDER SECTION 68, THE TRIBUNAL WAS NOT COMPETENT TO MAKE THE ADDI TION UNDER SECTION 69A. THAT BEING SO, WHEN THE TRIBUNAL HAS NO POWER TO SUSTAIN ADDITION U/S. 69A OF THE ACT, AFTER DELETING IT U/S. 68, THE SAME IS EQUALLY APPLICABLE TO CIT(APPEALS) ALSO. HE CANNOT SUSTAIN ADDITION U /S. 69A AFTER DELETING IT U/S. 68 OF THE ACT. IT IS TO BE NOTED THAT THE ORD ERS RELIED ON BY THE LD. DR IN THE CASE OF ANUP SHARMA AND P.V. AJAY NARAYAN (SUPRA) HAVE NO OCCASION TO CONSIDER JUDGMENT OF HONBLE ALLAHABAD HIGH COUR T CITED SUPRA WHICH WAS DELIVERED ON 18.07.2017. IN MY OPINION, THE HO NBLE ALLAHABAD HIGH COURT JUDGMENT ( SUPRA) WILL PREVAIL OVER THE ORDERS OF THE TRIBUNAL CITED BY ITA NO. 3070/BANG/2018 PAGE 5 OF 5 THE LD. DR. THEREFORE, I HAVE NOT CONSIDERED THE ORDERS OF TRIBUNAL RELIED ON BY THE LD. DR. IN LIGHT OF THE ABOVE, THE ADD ITION SUSTAINED BY THE CIT(APPEALS) U/S. 69A OF THE ACT IS DELETED. 11. IN THE RESULT, THE APPEAL BY THE ASSESSEE IS AL LOWED. PRONOUNCED IN THE OPEN COURT ON THIS 11 TH DAY OF SEPTEMBER, 2020. SD/- ( CHANDRA POOJARI ) ACCOUNTANT MEMBER BANGALORE, DATED, THE 11 TH SEPTEMBER, 2020. / DESAI S MURTHY / COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.